Zapple Doctrine Death

In the context of a petition to deny a broadcast station renewal application, the FCC has taken the opportunity to “kill” the Zapple Doctrine, a holdover policy having its roots in the now repealed Fairness Doctrine.

The Zapple Doctrine originated in 1970 when the FCC responded to Nicholas Zapple’s request for an interpretation of whether stations had to provide equal time to supporters of a political candidate.  In response, the FCC confirmed that a political candidate’s supporters were entitled to equal time on broadcast stations, relying upon the then-in-effect Fairness Doctrine as the basis for its decision.  Unlike the other Fairness Doctrine-based personal attack and political editorial rules, which were adopted by rulemaking and codified, the Zapple Doctrine was never codified as a rule.

In the renewal application petition to deny, the petitioner alleged that the station had refused to provide equal time to the supporters of a Democtratic candidate for governor of Wisconsin so that they could respond to statements made on the station by the Republican candidate.  The FCC rejected that argument, noting the FCC’s 1987 abrogation of the Fairness Doctrine, the 1989 D.C. Circuit affirmation of that decision, and the FCC’s 2011 action deleting Fairness Doctrine rules that were still on the books.  The FCC succinctly stated that the Zapple Doctrine was defunct because the Fairness Doctrine on which it was based no longer had legal effect, and noted that the FCC could repeal it without a rulemaking proceeding because it had never been a rule.

This action means that on-air opinion statements about a candidate, when made by non-candidates, can no longer be countered by supporters of the opposing candidate demanding an equal opportunity to respond.  Broadcasters should note that a qualified candidate’s appearance on a station does create equal opportunities – but for the candidate’s opponents, not the opponent’s supporters.